Citation Nr: 0701243
Decision Date: 01/16/07 Archive Date: 01/25/07
DOCKET NO. 02-11 019A ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Manchester,
New Hampshire
THE ISSUE
1. Entitlement to service connection for the cause of the
veteran's death.
2. Entitlement to Dependency Educational Assistance under
38 U.S.C. Chapter 35.
REPRESENTATION
Appellant represented by: New Hampshire State Veterans
Council
ATTORNEY FOR THE BOARD
LouElla Kuta, Associate Counsel
INTRODUCTION
The veteran retired from active duty in August 1972, having
served on active duty for more than twenty years. He died in
December 2001. The appellant is the veteran's surviving
spouse.
This case comes from an April 2002 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Manchester, New Hampshire. The case was remanded in April
2004, June 2005, and September 2005, in part, to ensure
compliance with the doctrine set forth in Thurber v. Brown, 5
Vet.App. 119 (1993) (Where medical texts are relied upon to
deny a benefit the appellant must be provided notice of that
evidence and an opportunity to respond.).
FINDINGS OF FACT
1. The veteran died in December 2001.
2. The veteran's death certificate lists the cause of death
as carcinomatosis due to or as a consequence of a carcinomial
bowel.
3. Following the death of the veteran service connection for
diabetes mellitus was established on an accrued basis.
4. A service connected disability did not contribute
substantially or materially to his death or aid or lend
assistance to the production of death.
CONCLUSIONS OF LAW
1. A disability incurred in or aggravated by service did not
cause or contribute to the veteran's death. 38 U.S.C.A.
§§ 1101, 1110, 1112, 1116, 1310, 5103, 5103A, 5107 (West 2002
& Supp. 2005); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307,
3.309, 3.312 (2006).
2. The requirements for eligibility for dependents'
educational benefits under Chapter 35, Title 38, United
States Code, have not been met. 38 U.S.C.A. §§ 3500, 3501,
3510 (West 2002 and Supp. 2005).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act of 2000 (VCAA)
Under 38 U.S.C.A. § 5102 VA first has a duty to provide an
appropriate claim form, instructions for completing it, and
notice of information necessary to complete the claim if it
is incomplete. Second, under 38 U.S.C.A. § 5103(a), VA has a
duty to notify the claimant of the information and evidence
needed to substantiate and complete a claim, i.e., evidence
of veteran status; evidence of a nexus between service and
death; and the effective date of any death benefits. The
appellant must also be notified to submit all evidence in her
possession, what specific evidence she is to provide, and
what evidence VA will attempt to obtain.
VA thirdly has a duty to assist claimants in obtaining
evidence needed to substantiate a claim. This includes
obtaining all relevant evidence adequately identified in the
record, and in some cases, affording VA examinations. 38
U.S.C.A. § 5103A.
There is no issue as to providing an appropriate application
form or completeness of the application. Written notice
provided in October 2003 and September 2005 correspondence
fulfills the provisions of 38 U.S.C.A. § 5103(a). The claims
were readjudicated in a June 2006 supplemental statement of
the case which also provided notice of the type of evidence
necessary to establish an effective date for the benefit
sought on appeal.
Finally, VA has secured all available pertinent evidence and
conducted all appropriate development. The service medical
records are available as well as treatment records and there
is no pertinent evidence which is not currently part of the
claims file. Hence, VA has fulfilled its duty to assist the
appellant in the prosecution of her claim.
Background
The death certificate shows that the veteran died in December
2001 due to carcinomatosis due to or as a consequence of a
carcinomial bowel.
Following the death of the veteran service connection was
established on an accrued basis for diabetes mellitus
associated with herbicide exposure.
The appellant contends that the veteran's exposure to
herbicides contributed to and hastened his death.
Service medical records show no treatment for bowel cancer.
Following a colonoscopy, an October 2000 pathologist found
that the veteran had a neuroendocrine carcinoma of the
rectum.
An October 2000 computerized tomography scan conducted at the
Cheshire Medical Center revealed large numbers of metastatic
lesions in the liver. There was also possible concentric
thickening of the rectal wall which was possibly in keeping
with clinical evidence of a rectal lesion. The examiner
opined that this presumably was the source of the liver
metastases.
In October 2000, Dr. James M. Nicholson examined the veteran
and diagnosed carcinoid syndrome with liver metastases. Dr.
Nicholson presumed that the liver lesions were due to the
rectal carcinoid, though with the veteran's smoking history a
chest x-ray was planned to ensure that a secondary primary
lesion was not present.
A November 2000 report from Dr. Nickerson included a
diagnosis of carcinoid of the rectum with liver metastases.
Chest x-rays of the veteran were conducted by Dr. Paul C.
Koutras of The Cheshire Medical Center in December 2000. The
veteran had a clinical indication of dyspnea and a history of
rectal carcinoma with liver metastases. Dr. Koutras
concluded that upon examination there was no acute disease of
the lungs.
July and August 2001 records from the Hitchcock Clinic
prepared by Dr. Nicholson include an assessment of carcinoid
syndrome/small cell/neuroendocrine carcinoma of the liver,
unknown primary.
In August 2001, James Ballou, M.D., reported that the veteran
was suffering from end stage liver cancer, neuroendocrine and
questionable small cell cancer of unknown etiology.
An August 2001 letter from Dr. Nickerson stated that he
treated the veteran for carcinoma of the liver,
neuroendocrine type, question small cell, unknown primary,
though possibly of lung given presentation. Dr. Nickerson
reported the veteran served in Vietnam and that given his
presentation, the most likely source for his cancer would be
the lung, though workup was negative for a primary site and
the veteran fell into a carcinoma of unknown primary
category. Dr. Nickerson opined however, this would most
likely be a lung malignancy.
In March 2002, a VA examiner reported the veteran had a well
differentiated neuroendocrine tumor (carcinoid) beginning in
his rectum which was metastatic to his liver.
In June 2002 letter Dr. Nickerson clarified that the veteran
actually had a carcinoid tumor of the rectum. However,
because the liver lesions in his overall course were more
aggressive than a typical carcinoid, the veteran fell into a
category of a neuroendocrine type tumor given its clinical
behavior. Dr. Nickerson requested that the veteran's Agent
Orange exposure be reevaluated given the unusual nature of
his illness and the fact that it behaved very aggressively.
In June 2002, Dr. James M. Ballou submitted a letter stating
that the veteran developed a carcincoid tumor of the rectum,
which was metastatic to the liver, and which ultimately led
to his demise. Dr. Ballou the veteran's exposure to Agent
Orange.
There is no competent evidence linking the veteran's
carcinomatosis due to or as a consequence of a carcinomial
bowel to service.
Criteria
In order to establish service connection for the cause of the
veteran's death, the evidence must show that a disease or
disability incurred in or aggravated by service either caused
or contributed substantially or materially to cause death.
38 U.S.C.A. § 1310; 38 C.F.R. § 3.312(a).
In determining whether a service-connected disability
contributed to death, it must be shown that it contributed
substantially or materially; that it combined to cause death;
that it aided or lent assistance to the production of death.
It is not sufficient to show that it casually shared in
producing death, but rather it must be shown that there was a
causal connection. 38 C.F.R. § 3.312(c)(1).
If a veteran was exposed to an herbicide agent during active
military, naval or air service, certain diseases shall be
service connected if the requirements of 38 C.F.R. §
3.307(a)(6)(iii) are met, even though there is no record of
such disease during service, provided further that the
rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are
also satisfied. Carcinomatosis due to or as a consequence of
carcinomial bowel is not such a disease. 38 C.F.R. §§ 3.307,
3.309(e).
As will be discussed in further detail below, the veteran's
service medical records are negative for any reference to
carcinomatosis due to or as a consequence of carcinomial
bowel, and there is no post-service evidence of any
carcinomatosis until years after service. In the absence of
medical evidence suggestive of carcinomatosis due to or as a
consequence of carcinomial bowel in service for over 25 years
thereafter, referral of this case for a VA opinion as to
whether any carcinomatosis due to or as a consequence of
carcinomial bowel originated in service or whether the
disorder was compensably disabling within one year thereof
would in essence place the reviewing physician in the role of
a fact finder. This is the Board's responsibility. In other
words, any medical opinion which directly inks the veteran's
carcinomatosis due to or as a consequence of carcinomial
bowel to his period of service would necessarily be based
solely on any uncorroborated assertions by the appellant
regarding the veteran's medical history. The Court has held
on a number of occasions that a medical opinion premised upon
an unsubstantiated account is of no probative value. See
Reonal v. Brown, 5 Vet. App. 458, 460 (1993); Moreau v.
Brown, 9 Vet. App. 389, 395-396 (1996); Swann v. Brown, 5
Vet. App. 229, 233 (1993). In short, there is no suggestion,
except by unsubstantiated allegation, that the veteran's
carcinomatosis due to or as a consequence of carcinomial
bowel may be associated with an established event, injury or
disease in service. 38 C.F.R. § 3.159(c)(4). See Wells v.
Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003).
It is the responsibility of the Board to weigh the evidence,
including the medical evidence, and determine where to give
credit and where to withhold the same. Evans v. West, 12
Vet. App. 22, 30 (1998). In so doing, the Board may accept
one medical opinion and reject others. Id. At the same
time, the Board cannot make its own independent medical
determinations, and it must have plausible reasons, based
upon medical evidence in the record, for favoring one medical
opinion over another. Rucker v. Brown, 10 Vet. App. 67, 74
(1997). Thus, the Board must determine the weight to be
accorded the various items of evidence in this case based on
the quality of the evidence and not necessarily on its
quantity or source.
Analysis
I. Service connection for the cause of the veteran's death.
The veteran served on active duty in the Republic of Vietnam
during the Vietnam War, and is therefore presumed to have
been exposed to herbicide agents. 38 C.F.R. §
3.307(a)(6)(iii). The veteran's service medical records are
negative for complaints, treatment, or diagnosis of any form
of cancer.
With respect to the veteran's presumed exposure to herbicides
in service, carcinomatosis due to or as a consequence of
carcinomial bowel is not a disorder subject to presumptive
service connection under 38 U.S.C.A. § 1116 or 38 C.F.R. §
3.309(e). Moreover, while the appellant is not precluded from
proving that a disability resulted from in-service exposure
to herbicides under the provisions of 38 U.S.C.A. § 1110 and
38 C.F.R. § 3.303(d), see Combee v. Brown, 34 F.3d 1039 (Fed.
Cir. 1994); the Secretary of VA, based on a January 2003
report by the National Academy of Sciences (NAS), determined
that a comprehensive review and evaluation of the available
literature, which NAS conducted in conjunction with the
report, permitted VA to identify all conditions for which the
current body of knowledge supported a finding of an
association with herbicide exposure. The Secretary therefore
determined that there is no positive association between
exposure to herbicides and any other condition for which he
has not specifically determined that a presumption of service
connection is warranted. See 68 Fed. Reg. 27,630-41 (May 20,
2003).
As noted above, the Secretary of VA has determined, based on
a NAS report issued in January 2003, that there is no
positive association between exposure to herbicides and
carcinomatosis due to or as a consequence of carcinomial
bowel. Id.
Accordingly, there is no competent medical evidence linking
carcinomatosis due to or as a consequence of carcinomial
bowel to herbicide exposure in service, and the preponderance
of the evidence shows that the veteran's carcinomatosis did
not originate in-service. Rather, it began many years after
service, and bears no etiological relationship to service.
Therefore, presumptive service connection is not warranted
for the veteran's carcinomatosis due to or as a consequence
of carcinomial bowel under 38 U.S.C.A. § 1116, or under 38
C.F.R. § 3.309(e).
The Board notes that an Agent Orange presumptive cancer that
develops as a result of a metastasizing non-presumptive
cancer may not be service-connected under 38 U.S.C.A. §
1116(a). See 38 U.S.C.A § 1113(a) (West 2002); Darby v.
Brown, 10 Vet. App. 243 (1997) (the presumption of service
connection for lung cancer was rebutted by medical evidence
showing that the stomach was the primary site); see also,
VAOPGCPREC 18-97 (presumptive service connection may not be
established under 38 U.S.C.A. § 1116 and 38 C.F.R. § 3.307(a)
for a cancer listed in 38 C.F.R. § 3.309(e) as being
associated with herbicide exposure if the cancer developed as
the result of metastasis of a cancer that is not associated
with herbicide exposure).
While the Board acknowledges the August 2001 opinion of Dr.
Nickerson, under 38 C.F.R. § 3.102 service connection may not
be based on a resort to speculation. Indeed, in Tirpak v.
Derwinski, 2 Vet. App. 609, 611 (1992), the Court held that
medical evidence which merely indicates that the alleged
disorder "may or may not" exist or "may or may not" be
related to service, is too speculative to establish such
relationship. To grant service connection based on Dr.
Nickerson's statement would require an unreasonable reliance
on speculation. Indeed, Dr. Nicholson himself wrote in June
2002 that the veteran had a rectal cancer. Dr. Nicholson did
not report that the veteran had a primary lung cancer which
had metastasized to the rectum.
Therefore, entitlement to service connection for the cause of
the veteran's death is denied.
In reaching this decision, the Board considered the doctrine
of reasonable doubt, however, as the preponderance of the
evidence is against the appellant's claim, the doctrine is
not for application. Gilbert v. Derwinski, 1 Vet.App. 49
(1990).
II. Entitlement to DEA benefits
In pertinent part, Chapter 35, Title 38, United States Code
extends VA educational program benefits to surviving spouses
of veterans who died of service-connected disabilities and to
the surviving spouse of a veteran who, when he died, had a
service-connected total disability that was permanent in
nature. See 38 U.S.C.A. §§ 3500, 3501(a)(1).
As service connection for the cause of the veteran's death is
not warranted, and as the veteran, when he died, did not have
a service-connected total disability that was permanent in
nature, the Board concludes that the criteria for basic
eligibility for DEA under Chapter 35, Title 38, United States
Code, have not been met.
ORDER
Entitlement to service connection for the cause of the
veteran's death is denied.
Entitlement to Dependency Educational Assistance under
38 U.S.C. Chapter 35 is denied.
____________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs